Questions arising for a decision in this appeal are:

(i) when can the court of appeal interfere with an order passed by the trial court in exercise of its discretionary power?

(ii) when can a court direct a successful party to the litigation to pay the costs of the unsuccessful party?

2. Facts in brief necessary for a decision are:- Appellant No.1 is running a hospital. Appellant No.2 is the chief gynecologist of that hospital. At a time when the respondent had already given birth to two female children, she again conceived and sought medical assistance from the appellants. She gave birth to female twins and thereafter underwent PPS operation at the hospital of the appellant No.1. According to the respondent, the operation was performed by appellant No.2. She was assured that the operation was successful and that she could lead normal sexual life. Believing that, she did so but conceived again much to her agony as she already has four female children and she was finding it difficult to maintain them. Respondent delivered her fifth female child. Respondent issued notice to appellant No.1 seeking damages on the allegation that the operation did not succeed due to lack of care taken by appellant No.2 in performing the operation and making appellant No.1 vicariously liable for such damages. As admitted by the respondent, appellant No.1 gave a reply denying the allegations and repudiating the claim. Not satisfied with that reply respondent filed the suit against the appellants in the court of learned Sub Judge seeking damages to the tune of Rs.50,000/-. Appellants resisted the suit contending inter alia, that there was no negligence on the part of appellant No.2 in performing the operation and that respondent happened to conceive again due to re-canalization of the fallopian tube. It was also contended that appellant No.1 had no involvement in that matter except that the PPS operation was performed in the hospital but that was under the supervision and control of the Family Welfare Department of the Government of India. Learned Sub Judge found on evidence that there was no lack of care taken by the appellants in conducting the operation. In paragraph 13 of the judgment learned Sub Judge observed:

"The evidence of DW1 and DW2 is convincing to the effect that 2nd defendant performed the surgery with ordinary care and caution that is expected from a medical officer and the subsequent pregnancy of the plaintiff must have been on account of the natural recanalization of the fallopian tube..............."

The suit was dismissed. But, by the same judgment followed by a decree learned Sub Judge directed the appellants to pay the costs of the unsuccessful respondent and further directed that since the suit was instituted informa pauperis, the court fee payable by the respondent will be recovered by the Government from the appellants. That part of the judgment and decree are under challenge at the instance of the appellants.

3. Learned counsel for appellants contended that the court below on facts, evidence and law was not justified in granting decree in favour of the respondent for costs and directing that the court fee will be paid by the appellants having found that the case set up by the respondent is not established. According to the learned counsel, the discretion vested with the court was not properly exercised. Learned counsel for the respondent in response contends that the court below has exercised its discretion in favour of the respondent on the materials available on record and this Court may not interfere in appeal against an order passed in exercise of the discretionary power. Learned counsel placed reliance on the decision of the Apex Court in Saji Geervarghese v. Accounts Officer (2009 (1) KLT 378).

4. First question for a decision is, under what circumstance a court of appeal could interfere with an order passed by the trial court in exercise of its discretion? The court of appeal may interfere with a discretio